Please explain the various types of evidence which are admissible in an English court of law.
The following is a list of relevant terminology — discussed in logical order rather than in alphabetical order:
Evidence. “That which tends to render evident, or to generate proof” (W M Best, Treatise on Evidence, 1849). The essence of evidence is that it tends to be probative, or disprobative, of certain facts. There is always the possibility that the evidence might not be believed, but it does not cease to be evidence by reason only of this risk.
Evidence must be directed to questions of fact, not to questions of law. Thus modern statutes and law reports are produced in court not as items of evidence but as sources of law which “refresh the judge’s memory”. The common law of England, the rules of Equity, and the Public and General Acts of the UK since 1850 are all said to be “within the breast of the judge”. Private Acts of Parliament, delegated legislation, codes of practice, circulars, and the like, are not subject to this rule (known as the “doctrine of judicial notice”). The party relying on them is obliged to produce a copy as evidence, albeit that the requirements of proof will not be very strict.
The doctrine of judicial notice applies to the Treaty of Rome and the general body of Community Law (but not to the municipal law of any foreign state). It also applies to notorious facts, and to matters which can be checked in common sources of references (eg political matters, historical facts, the meaning of English words, and the practices of map-makers, conveyancers, and other professional men).
It should be noted in passing (although it is too large a subject to be discussed here) that the requirement to produce evidence as to the existence (or non-existence) of a particular fact will be removed if the common law (or an Act of Parliament) is prepared to presume the existence (or non-existence) of this state of affairs. An example of a common law presumption is the “presumption of regularity”. This dispenses with the need to prove the proper functioning or propriety of things unless there is some evidence to suggest malfunctioning or impropriety. (Thus a party relying on a deed or written contract does not have to prove the absence of fraud or any other vitiating factor — unless, of course, the presumption of undue influence applies in favour of the other party.) An example of a statutory presumption is section 184 of the Law of Property Act 1925 (when in doubt, older persons are presumed to predecease younger persons, and title to property passes accordingly).
Finally, it should be noted that the obligation to adduce evidence is intrinsically related to the burden of proof. If the burden of proving a vital fact rests upon A and he fails to adduce any evidence about that fact, his opponent (B) will be entitled to judgment without the need to call any evidence in rebuttal. It would be a breach of the “no-evidence rule” for the court (or other decision-maker) to decide in favour of A in such circumstances: Coleen Properties v Minister of Housing and Local Government [1] 1 All ER 1049.
Relevant evidence. Evidence of a fact which is so logically related to a fact in issue that “according to the common course of events … either taken by itself or in connection with other facts, (it) proves or renders probable the past, present, or future existence” of the fact in issue (Sir James Fitzjames Stephen, Digest of the Law of Evidence). All admissible evidence is relevant, but not all relevant evidence is admissible. Relevance is a question of logic, while admissibility is a question of law. Relevance does not exist in isolation. Evidence must either be relevant to the facts in issue (direct evidence) or to facts which are themselves relevant to the facts in issue (circumstantial evidence).
In civil litigation, the facts in issue are defined by the pleadings. It is sometimes possible to amend these pleadings (and thereby to alter the facts in issue), but this usually results in the costs occasioned or “thrown away” by the amendment being awarded against the amending party, whatever the final outcome of the case. Moreover, in Farrell v Secretary of State for Defence [0] 1 All ER 166 Lord Edmund-Davies stated that it was bad law and bad practice to shrug off a criticism as a “mere pleading point”, for the purpose of pleadings was “to define the issues and thereby to inform the parties in advance of the case they have to meet”.
Admissible evidence. A subdivision of relevant evidence, acceptable to a court not only because it conforms to “natural reason” but because it also conforms to the “artificial reason and judgment” of the law (to adopt the terminology of Sir Edward Coke in The Case of Prohibitions (1607) 12 Co Rep 63). The justification for declaring relevant evidence to be inadmissible evidence is most clearly seen in those cases where questions of fact are decided by juries or other laymen. In such cases, the rationale is not that the jury will confuse relevance with irrelevance, or that they will necessarily believe that all relevant evidence is of equal weight but that they may act upon the assumption that some relevant evidence is more relevant than it really is (eg the previous convictions of a defendant in a criminal trial). The rule against similar fact evidence is, perhaps, the best example of this principle at work. (This rule renders inadmissible any evidence which tends to show that the defendant has acted similarly towards other persons on other occasions, unless the similarity of the conduct is so striking that it becomes absurd to shy away from obvious inferences, or unless the evidence rebuts a defence which might otherwise be open to the party concerned, eg accident, chance, or coincidence in an action for breach of copyright: Mood Music Publishing Co v De Wolfe [6] 1 All ER 763.)
Admissibility of evidence is far less relevant in those cases which are heard before tribunals, inspectors, coroners, and other persons whose duty it is to inquire into the truth of certain facts, rather than to preside over adversarial proceedings. In such cases, the boundaries of admissibility are usually co-terminus with the boundaries of natural justice: Miller v Minister of Housing and Local Government [8] 2 All ER 633.
Oral evidence. One of the three forms of adducing evidence in a court of law. The three forms of evidence are: (1) oral testimony; (2) documents (or copies of documents); and (3) “real evidence” (which see). Oral evidence must be given on oath or on affirmation.
In criminal cases a “child of tender years” may give unsworn (and unaffirmed) evidence but must be corroborated by some other independent evidence: section 38, Children and Young Persons Act 1933. (It is for the judge to decide whether the child is intelligent enough to give such evidence.) There is no such provision in civil cases, and so a child must be mature enough to take the oath before he or she can give evidence in the High Court or county court or in those tribunals and inquiries which require evidence to be given on oath. But the requirements of maturity are not too exacting: R v Hayes [7] 2 All ER 288. A person of unsound mind may be competent to give evidence if he understands the nature of the oath and remains lucid throughout his evidence: R v Hill (1851) 5 Cox 259.
Documentary evidence. The second (and, conceptually, the most difficult) of the three forms of adducing evidence in a court of law. Section 10 of the Civil Evidence Act 1968 contains a very wide definition of a “document” — and even this definition does not claim to be exhaustive. (It includes maps, plans, graphs, drawings, photographs, discs, tapes, sound tracks, etc.) Notwithstanding this definition, any of the things mentioned in section 10 might, in certain circumstances, be adduced not as a form of documentary evidence, but as an example of “real evidence”. Thus a title deed produced to show a boundary will be a form of documentary evidence; but if it is produced as the subject-matter of a contract between a buyer and seller of antique documents, it will be a form of “real evidence”.
In the first example, the deed is communicative (or expressly assertive) of a fact contained in it. In the second example, it is not being adduced to communicate a fact in issue, but rather to allow inferences to be drawn from its existence, quality, and appearance as a thing to be bought and sold. Because documentary evidence is expressly assertive — written, visual, or audio substitutes for the oral testimony of the person who wrote, drew or otherwise compiled them — they are amenable to the rule against hearsay. Thus many statutory exceptions have had to be enacted to allow certain documents to be admissible in civil or criminal proceedings.
Real evidence. Evidence which is viewed (or otherwise experienced) by the court in order to draw inferences from its appearance and/or other characteristics (eg the docility of a dog alleged to be vicious: Line v Taylor (1862) 176 ER 335). Expert evidence may sometimes be necessary to assist the court to draw appropriate inferences from the thing in question (eg a fingerprint). The fact that the thing viewed by the court contains writing, or some other communication, will not necessarily mean that it is a form of documentary evidence. Tape recordings, video-tapes and the like are probably a form of real evidence, at least when the person recorded on them did not intend to communicate anything by means of that recording. Thus a true copy of a tape recording or a video-tape is no less (and no more) admissible that the original recording itself: Kajala v Noble [2] Crim LR 433.
In practice, the distinction between real evidence and documentary evidence is of diminishing importance, because it has recently become much easier to adduce copies of documentary evidence than used to be the case (see Secondary Evidence). If the thing in question is too large to be brought to court, the judge may agree to a site visit if he is satisfied that photographs, plans and other evidence might not suffice to allow him to do justice to the case. Thus in Tito v Waddell [5] 3 All ER 997 Megarry J agreed to visit Ocean Island, in the Pacific, to view the alleged despoliation of the island by mining operations. A judge may carry out a site visit, even if both parties oppose this procedure, and may refuse to carry out such a visit, even if both parties request it. But an arbitrator has no such discretion.
Direct evidence. A term with no special meaning. When used in contra-distinction to “circumstantial evidence” it means evidence of one or more of the facts in issue, as opposed to evidence of some more remote fact from which one or more of the facts in issue may be inferred. When used in contra-distinction to “hearsay evidence” it means evidence given by a witness of some fact in issue (or some circumstantial fact) which he has personally experienced, as opposed to some experience of another person which has been communicated to that witness and which he desires to relate to the court in his evidence.
Circumstantial evidence. Evidence relevant to a fact in issue, but not itself direct evidence of that fact. Some examples are the motive, opportunity and subsequent conduct of a defendant in civil or criminal proceedings and, indeed, all forms of res gestae (see Part II). Although “similar fact evidence” is generally inadmissible (see Admissible Evidence, above), any evidence which indicates a common source for injuries or losses inflicted on (otherwise) unconnected persons will be an admissible form of circumstantial evidence.
Thus in Hales v Kerr [8] 2 KB 601 the plaintiff was able to prove that a barber had infected him with “barber’s itch” by showing that other customers of the same barber had also developed the same infection. But the fact that a merchant has transacted business on certain terms with A, B and C is not admissible evidence that he has been able to agree those same terms when transacting business with D: Hollingham v Head (1858) 140 ER 1135. The fact that a man is found dead by a level crossing having (evidently) been struck by a train is not circumstantial evidence that the train driver was negligent, rather than the man: Wakelin v LSWR (1886) 12 AC 41. But (according to an Australian case) the fact that a man is found dead on a clearly-lit road having (evidently) been struck by an unknown car is circumstantial evidence that the motorist was negligent, rather than the pedestrian: Holloway v McFeeters (1956) 94 CLR 470. In Ward v Tesco Stores Ltd [1976] 1 All ER 219 the Court of Appeal held (by a 2:1 majority) that the fact that a customer slips on some yoghurt in a supermarket is circumstantial evidence of negligence on the part of the occupiers of the shop. (In tort, this is an example of the doctrine of res ipsa loquitur.) But the fact that a defendant alters his practice, or repairs a defect, after an accident has occurred is not circumstantial evidence of previous negligence on his part, for, because the world gets wiser as it gets older, it does not therefore follow that it was negligent before.
Circumstantial evidence has been likened to “a rope comprised of several cords” rather than a chain which breaks at the weakest link. This being so, a number of circumstantial facts may, together, prove a case, even though they are not sufficiently probative on their own to do so.
